Communicated on 4 November 2015

FIFTH SECTION

Application no. 28989/14 Rainer THINNES against Germany lodged on 7 April 2014

STATEMENT OF FACTS

The applicant, Mr Rainer Thinnes, is a German national, who was born in 1961 and is detained in Diez Prison. He is represented before the Court by Mr O. Möller, a lawyer practising in Völklingen (Germany).

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s previous convictions and the order for his preventive detention and execution thereof

Between 1977 and 1988 the applicant was convicted four times of offences including rape, five counts of attempted rape, dangerous assault committed with an alarm pistol, several counts of attempted robbery and numerous counts of theft. He was sentenced to terms of imprisonment of up to eight years.

On 4 May 1998 the Saarbrücken Regional Court convicted the applicant of attempted aggravated robbery combined with dangerous assault and of obstructing police officers in the execution of their duties. It sentenced him to five years ’ imprisonment and ordered his preventive detention, a measure which was imposed on the applicant for the first time, under Article 66 §§ 1 and 2 of the Criminal Code (see Relevant domestic law and practice below) .

The Regional Court found that on 11 May 1997 the applicant, acting under the influence of alcohol, had attempted to rob a sixteen-year-old girl at night with the help of an electric shock device and had injured her with that device at the neck. He had further shot twice on three police officers who had caught him in the act and had chased him before arresting him.

The Regional Court considered that the applicant had acted with full criminal responsibility. Neither the consumption of alcohol nor the applicant ’ s limited facilities nor his personality disorder, which was not pathological, had diminished the applicant ’ s criminal responsibility for the purposes of Article 21 of the Criminal Code (see Relevant domestic law and practice below). The Regional Court endorsed in this respect the findings made by the psychiatric and psychological expert it had commissioned, L., who had examined the applicant in person. In accordance with L. ’ s findings, it considered that the applicant, who had not graduated from school and was unemployed, had an infantile and egocentric personality with little emotions, which, combined with his limited facilities, had prevented his social integration. His personality disorder was not, however, of a degree so as to classify the applicant as an autistic psychopath with little relationships with others.

As regards the order for the applicant ’ s preventive detention, the Regional Court found that, as required by Article 66 §§ 1 and 2 of the Criminal Code, the applicant had previously been found guilty of rape and of dangerous assault and had been sentenced to eight years ’ imprisonment, which he had served. Moreover, having regard to expert L. ’ s findings, the applicant had a tendency to act aggressively in situations in which he felt that he outmatched others. He had a propensity to commit serious offences and there was a risk that he would commit further offences similar to those he had been found guilty of. He was therefore dangerous to the public.

On 8 November 2002 the applicant, having served his full prison sentence, was placed in preventive detention. He had therefore served ten years in preventive detention on 7 November 2012.

The continuation of the applicant ’ s preventive detention was ordered by the courts responsible for the execution of sentences at regular intervals. It was ordered, in particular, by the Aachen Regional Court on 6 September 2010. Both the psychiatric and the psychological expert appointed by the court in these proceedings, having examined the applicant in person, had considered that the applicant neither suffered from a mental illness nor from a personality disorder. He had an accentuated personality with emotionally unstable, impulsive, paranoiac and dissocial elements, had limited facilities and was in need of further psychotherapy and of violence prevention training to reflect on his offences and to reduce his dangerousness. There was still a risk that he would commit further serious offences if released.

2. The proceedings at issue

(a) The decision of the Koblenz Regional Court

On 2 October 2012 the Koblenz Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the applicant ’ s preventive detention, imposed by the Saarbrücken Regional Court in 1998, to continue. It relied on Article 67d § 3 of the Criminal Code, interpreted in a restrictive manner as prescribed by the Federal Constitutional Court (see Relevant domestic law and practice below) .

The Regional Court had heard the applicant and his counsel as well as psychiatric and psychotherapeutic expert K., whom it had commissioned and who had submitted a report dated 4 June 2012, in person.

The Regional Court noted that the applicant ’ s preventive detention was prolonged with retrospective effect beyond the former ten-year maximum duration as a result of the amendments made to Article 67d § 3 of the Criminal Code by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998 (see Relevant domestic law and practice below) .

The Regional Court further observed that the applicant ’ s preventive detention could only be prolonged retrospectively under the new version of Article 67d § 3 of the Criminal Code if, in addition, the stricter requirements laid down by the Federal Constitutional Court in its judgment of 4 May 2011 (see Relevant domestic law and practice below) were met. The applicant ’ s detention could therefore only be extended if, owing to specific circumstances relating to his person or his conduct, it was highly likely that he would commit the most serious crimes of violence or sexual offences and if, additionally, he suffered from a mental disorder as defined by section 1 § 1 of the Therapy Detention Act (see Relevant domestic law and practice below) .

The Regional Court was satisfied that these requirements were met. Taking into account the findings of expert K., who had examined the applicant in person, it was of the view that there was still a high risk the applicant would commit further most serious offences against the sexual self-determination and the physical integrity of others, such as rape, dangerous assault and aggravated robbery. The court acknowledged that the applicant had participated in therapeutic measures in so far as he was capable of doing so and had declared his readiness to take anti-androgenic medication and pursue psychotherapeutic treatment following his release. However, these measures did not suffice to considerably minimize the risk that the applicant would commit further serious offences.

The Regional Court, endorsing the findings made by expert K . in this respect, further found that the applicant suffered from a mental disorder within the meaning of section 1 of the Therapy Detention Act, namely from a dissocial personality disorder as defined by the ICD-10 . T hat disorder was characterised by continuous disrespect for the rights of others, indifference for the feelings of others, incapacity to uphold personal relationships, a readiness for aggressive and violent behaviour and an inability to learn from punishment. Moreover, the applicant had limited facilities. There was also a suspicion that the applicant, without having been addicted, had abused alcohol. The court noted in this context that the applicant had committed a number of his offences under the influence of alcohol, even though his blood alcohol level had not been considerable.

The Regional Court further ordered the Diez Prison authorities to allow the applicant to prepare his release to a closed residence in the year to come by relaxations in the conditions of his detention and by his treatment with anti-androgenic medication in order to considerably diminish his dangerousness.

(b) The decision of the Koblenz Court of Appeal

On 27 November 2012 the Koblenz Court of Appeal dismissed the applicant ’ s appeal as ill-founded. It fully endorsed the reasoning of the Regional Court. Referring to a decision of the Federal Constitutional Court of 15 September 2011 (see Relevant domestic law and practice below) , it confirmed, in particular, that the dissocial personality order the applicant suffered from was a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act. As a result of that disorder, there was still a high risk that the applicant would commit further most serious offences similar to those in respect of which his preventive detention had been ordered if released.

(c) The decision of the Federal Constitutional Court

On 12 December 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that the retrospective prolongation of his preventive detention beyond ten years in that form of detention by the decisions of the Koblenz Regional Court and the Koblenz Court of Appeal had violated his constitutional right to liberty. He argued, in particular, that he neither suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act nor from a mental illness for the purposes of Article 5 § 1 of the Convention. Moreover, the applicant argued that his continued preventive detention, which had been classified as a penalty by the European Court of Human Rights in its judgment in the case of M. v. Germany ( no. 19359/04, ECHR 2009), had breached the protection of legitimate expectations in a State governed by the rule of law and the prohibition on retrospective punishment.

On 9 October 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint for lack of prospects of success (file no. 2 BvR 2972/12). The decision was served on the applicant ’ s counsel on 18 October 2013.

3. The conditions of the applicant ’ s detention during the execution of the preventive detention order

From 2002 to 2003 the applicant was remanded in preventive detention in Werl Prison. From 2003 to 2010 he was detained in the department for persons in preventive detention in Aachen Prison. During that period, from November 2005 to January 2008, the applicant completed a one-to-one psychotherapy with an external psychologist.

Since 28 January 2010 the applicant has been detained in the department for persons in preventive detention in Diez Prison . From August 2010 until August 2011 the applicant had one-to-one therapeutic sessions with a social worker. Since September 2011 he has weekly one-to-one psychotherapeutic sessions with an external psychologist. He refused to participate in a social training course and in a treatment programme for sexual offenders. He has been working in the prison ’ s print office.

B. Relevant domestic law and practice

A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court ’ s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009).

The provisions on preventive detention notably in the Criminal Code have been amended since then, in particular, by the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences ( Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung ) of 5 December 2012, which entered into force on 1 June 2013. In that legislation, the legislator adopted new rules on the execution of preventive detention and on the execution of previous prison sentences, having regard to the requirements laid down in the Federal Constitutional Court ’ s leading judgment on preventive detention of 4 May 2011 (see Relevant domestic law and practice below) .

The provisions referred to in the present case provide as follows.

1. The preventive detention order issued by the sentencing court

When convicting an offender, the sentencing court may, under certain circumstances, order his preventive detention (a so-called measure of correction and prevention) in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code).

In particular, under Article 66 § 1 of the Criminal Code, in its version in force at the relevant time, the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to at least two years ’ imprisonment and if the following further conditions were satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year ’ s imprisonment in each case, for intentional offences committed prior to the new offence (Article 66 § 1 (1)). Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years (Article 66 § 1 (2)). Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (Article 66 § 1 (3)).

The sentencing court could further order preventive detention in addition to a penalty under Article 66 § 2 of the Criminal Code, as in force at the relevant time, if the person concerned had committed three intentional offences for each incurring a term of imprisonment of at least one year and if he was sentenced to at least three years ’ imprisonment for committing one or more of those offences. In addition, the requirements of Article 66 § 1 (3) had to be met. It was not necessary under that provision that the perpetrator had been previously convicted or detained.

2. Duration of preventive detention

(a) Provision in force prior to 31 January 1998

Under Article 67d § 1 of the Criminal Code, as in force prior to 31 January 1998, the first period of preventive detention could not exceed ten years. If the maximum duration had expired, the detainee was to be released (Article 67d § 3 of the Criminal Code).

(b) Amended provision in force since 31 January 1998

Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, as amended and still in force, provides that if a person has spent ten years in preventive detention, the court will declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination automatically entails supervision of the offender ’ s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a (3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis .

3. Provisions on criminal liability

Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality acts without guilt.

Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that the punishment may be mitigated if the perpetrator ’ s capacity to appreciate the wrongfulness of the act or to act in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the reasons indicated in Article 20 of the Criminal Code.

4. Detention of mentally ill persons

The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.

Furthermore, on 1 January 2011, following the Court ’ s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter ) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person ’ s detention must be necessary for the protection of the public.

5. Recent case-law of the Federal Constitutional Court

(a) The Federal Constitutional Court ’ s leading judgment on preventive detention of 4 May 2011

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning, in particular, the retrospective prolongation of the complainants ’ preventive detention beyond the former ten-year maximum period (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( Abstandsgebot ). These provisions included, in particular, Article 66 of the Criminal Code as in force since 27 December 2003.

The Federal Constitutional Court held that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, the courts responsible for the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their personality or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court ’ s case-law (see §§ 138 and 143-56 of the Federal Constitutional Court ’ s judgment). If the above pre-conditions were not met, those detainees had to be released.

(b) The Federal Constitutional Court ’ s decision of 15 September 2011

In a decision of 15 September 2011 (file no. 2 BvR 1516/11), the Federal Constitutional Court, referring to its judgment of 4 May 2011 (cited above), reiterated that a prolongation of a person ’ s preventive detention beyond the former ten-year time-limit applicable at the time of the person ’ s conviction was only possible if the requirements of Article 5 § 1 (e) of the Convention were met.

The Federal Constitutional Court further clarified that the notion of persons “of unsound mind” in Article 5 § 1 (e) of the Convention had been taken up by the legislator in section 1 § 1 of the Therapy Detention Act. In that Act, the legislator had created a new category of “mental disorder” which did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. Specific disorders in a person ’ s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act. This notion therefore was not limited to mental illnesses which could be treated clinically, but extended also to dissocial personality disorders.

COMPLAINTS

The applicant complains that the retrospective prolongation of his preventive detention beyond the former ten-year maximum duration in the proceedings at issue breached his right to liberty under Article 5 § 1 of the Convention. His detention was no longer justified under any of the sub ‑ paragraphs (a) to (f) of Article 5 § 1. In particular, he could not be classified as a person “of unsound mind” for the purp oses of sub ‑ paragraph (e) of that provision.

Relying on the Court ’ s judgments in the cases of M. v. Germany ( cited above ) and Glien v. Germany ( no. 7345/12 , 28 November 2013) , the applicant further argues that the prolongation of his preventive detention beyond ten years violated the prohibition on retrospective punishment under Article 7 § 1, second sentence, of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention as a result of the proceedings at issue?

Having regard to the Court ’ s judgments in the cases of M. v. Germany (no. 19359/04, ECHR 2009) and Glien v. Germany (no. 7345/12, 28 November 2013 ), did that deprivation of liberty fall within any of the sub-paragraphs (a) to (f) of Article 5 § 1?

In particular, having regard to the fact that the applicant ’ s preventive detention was ordered in a judgment of 4 May 1998 in respect of an offence committed on 11 May 1997, was that detention justified under Article 5 § 1 (a)?

And was the applicant ’ s detention justified under Article 5 § 1 (e)? Were the applicant ’ s conditions of detention during the relevant period adapted so as to take account of the fact that he was considered as suffering from a mental disorder? In that context, which percentage of the prison population in Diez Prison and in Rhineland-Palatinate prisons was diagnosed as suffering from a dissocial or another personality disorder?

2. Taking into consideration, in particular, the Court ’ s conclusions in its judgments in the cases of M. v. Germany (cited above) and Glien (cited above) , was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of his offences by the prolongation of his preventive detention beyond ten years, in breach of Article 7 § 1 of the Convention?

3. Where and under which conditions was the applicant ’ s preventive detention resulting from the proceedings at issue executed? Did the way in which the preventive detention order against the applicant was executed change during the period of detention here at issue as a result of the entry into force, on 1 June 2013, of the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences ( Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung )?